Page 73 - MetalForming April 2013

employer may advance to justify adverse action against an employee who reports an injury. In addition, such a policy is inconsistent with the employer’s obligation to establish a way for employees to report injuries under 29 CFR 1904.35(b), and where it is encountered, a referral for a recordkeeping inves- tigation should be made.”
2) “In another situation, an employee who reports an injury or illness is disciplined, and the stated reason is the employee has violated an employer rule about the time or manner for reporting injuries and illnesses. Such cases deserve careful scrutiny. Because the act of reporting the injury directly results in discipline, there is a clear potential for violating section 11(c). OSHA recognizes the employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries. To be con- sistent with the statute, however, such procedures must be reasonable and may not unduly burden the employee’s right and ability to report. For example, the rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all. Nor may enforcement of such rules be used as a pretext for discrimination. In investigating such cases, factors such as the following may be considered: whether the employee’s devi- ation from the procedure was minor or extensive, inadvertent or deliberate; whether the employee had a reasonable basis for acting as he or she did; whether the employer can show a substantial interest in the rule and its enforcement; and whether the discipline imposed appears disproportionate to the asserted interest. Again where the employer’s reporting requirements are unreasonable unduly burdensome, or enforced with unjustifiably harsh sanctions, they may result in inaccurate injury records, and a referral for a record- keeping investigation should be made.”
tions that do not involve an employee injury. Enforcing a rule more stringently against injured employees than nonin- jured employees may suggest that the rule is a pretext for dis- crimination against an injured employee in violation of sec- tion 11(c).”
4) “Finally, some employers establish programs that unin- tentionally or intentionally provide employees an incentive to not report injuries. For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker par- ticipation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or ‘near misses.’ OSHA’s VPP Guidance materials refer to a number of positive incentives, including providing tee shirts to workers serving on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health; or throwing a recognition party at the successful completion of company-wide safety and health training.”
For a copy of this OSHA enforcement alert, contact Ehlke
Law Offices.
Over 50,000 lb [222,411 N] total grip force
MF
24.25 in [61.5 cm]

You and The Law
3) “In a third situation, an employee reports an injury, and the employer imposes discipline on the grounds that the injury resulted from the violation of a safety rule by the employee. OSHA encourages employers to maintain and enforce legitimate workplace safety rules in order to eliminate or reduce workplace hazards and prevent injuries from occurring in the first place. In some cases, however, an employer may attempt to use a work rule as a pretext for dis- crimination against a worker who reports an injury. A care- ful investigation is needed. Several circumstances are rele- vant. Does the employer monitor for compliance with the work rule in the absence of an injury? Does the employer con- sistently impose equivalent discipline against employees who violate the work rule in the absence of an injury? The nature of the rule cited by the employer should also be con- sidered. Vague rules, such as a requirement that employees ‘maintain situational awareness’ or ‘work carefully’ may be manipulated and used as a pretext for unlawful discrimina- tion. Therefore, where such general rules are involved, the investigation must include an especially careful examination of whether and how the employer applies the rule in situa-
Meet
Mongo Large Frame Clamp

www.phdinc.com/mf413
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MetalForming/April 2013 71
32.5 in [82.5 cm]
weighs 700 lb [318 kg]
12 in [30.5 cm]